*2 PRESSLER, CANNON Before PAUL ELLIS, and JJ.

OPINION ON REHEARING PRESSLER, PAUL Justice. order vacated its trial court ability to do appellants a new trial. Its questioned. We so is affirm. appellants sued March from ex- they claim sustained injuries they living in a toxins while chemical posure to Appellants newly log home. constructed (1) claim the toxins were from properly two sources: did not consider the answers gas sour hydrogen blowouts and sulfate request to the for admissions from the emissions from nearby gas sweetening Kansas appel- lawsuit. On March plant (2) pentachlorophenol, a wood lee moved for severance to obtain a final preservative applied logs to the used judgment. April On constructing log Appellee home. response filed their to the motion to sever. joined in August the suit in of 1985. In response Attached to the were affidavits *3 1986, February appellee filed a motion by representatives of the two co-defen- for summary judgment. Several defensive 13, July hearing dants. On 1987 the was presented. theories Only were one of them held and severance was ordered. identification) (product is at In issue here. Appellee timely filed a motion for new appellants granted March of 1986 were a 11, August on 1987. See Tex R.Civ.P. July hearing continuance. In of 1986 a on hearing A on 329b. the motion was held on summary the motion was 28, Monday, September Judge 1987 before appellants held and appear. failed to Jerry although day Sandel the seventy-five ruling court withheld on the motion period expired set forth in Rule 329b on for summary judgment appellants until 26, Saturday, September 1987. At the given were opportunity respond. another to hearing Judge granted Sandel the motion attorney’s Some then left the law firm 13, appel- for new trial. On October 1987 appellants which had retained. The lead lee filed a motion reconsider. Maneuver- left, attorney, who withdrew as counsel in appellants between August of 1986. He was later retained to Ernst, Judge assign- resulted in recusal of oversee the case at his new firm. visiting ment of judge, objections a appellants November of 1986 the assignment visiting judge. of the A given January were until 1987 to re hearing was scheduled on October 1987 spond appellee’s motion for day Judge but cancelled. The next Sandel judgment. discovery Several avenues of granting vacated the order the new trial pursued. Appellants were then filed re a holding hearing. without a sponse to the summary judg motion for 30,1987. January ment on Attached to the I. The Motion FORNew TRIAL. response request were answers to a admissions from a federal in lawsuit Kan day seventy-five day A. The last of the Despite discovery, sas. period. identify appellee were unable to as the Appellants judge claim that pentachlorophenol manufacturer of power lacked the to vacate his logs appellants’ used to treat the in home. seventy-five day period new after the Not were the answers to the attached 329b(c) prescribed under TEX.R.CIV.P. request sepa for admissions totally from a (Vernon 1989). lawsuit, Appellee contends that this they by rate were answered co-defendant, period expired Saturday, September on Chapman Company. Chemical Monday, September 28, It is not known whether the a 1987 and since was party requests beyond seventy-five day peri to that was lawsuit. Answers to od, only against power grant for admissions are admissible the court lacked party filing Appellee’s them. v. Pecan contention is in error. Griffith Association, Inc., (Vernon 1989) provides Plantation Owners TEX.R.CIV.P. (Tex.App. S.W.2d Worth follows: — Fort Weiss, writ); no Fort Bend I.S.D. v. day period comput- .... the last so (Tex.Civ.App. S.W.2d 241 [1st — Houston included, ed is to unless is a Satur- 1980, writ). Dist.] day, Sunday Legal Holiday, or which 10, 1987, period runs until the end of the hearing event February At the Saturday, is neither a Judge granted summary judg- day Ernst next which Erwin Legal obviously Holiday. a appellee. judge Sunday ment for the since it ad- changed significantly was Consequently, last seventy-five day period dressed in 1961 day of the Monday, September Fulton. fol appellants’ rationale is If the Jurisdiction to the order

B. vacate lowed, seventy-five a trial court days after granting new trial. trial, power new it loses claims, however, Appellants’ are also in power re rule in case and lacks provides error. Rule 329b form, order or vacate the modify, correct court, regardless (d) The trial of whether is not in accord granting a new trial. plena- perfected, has an has been power recognized in Rule plenary with the grant or to ry power to va- new granted, the trial 329b. a new trial is Once correct, cate, modify, judg- or reform the jurisdiction the case. exclusive court has days judg- thirty ment within after the give 329b(c) does the trial court seven Rule signed. ment signed ty-five days after the (e) timely If a motion for trial is new *4 329b rule on motion for new trial. Rule any regard- by filed the party, trial (e) (c) it together, and are read subsections per- appeal of been less whether an has actually gives the court one hundred trial fected, plenary power grant has to new (105) days rule on a for and five motion correct, vacate, or to modify, trial or The two subsections read thirty judgment days reform the until follows: timely after all such filed motions over- (c) original or In the event an amended ruled, signed by either a written or order new or a motion to modi- motion for law, operation byor which ever occurs judgment is not fy, correct or reform a first. signed by order with- determined written added). Appellants (emphasis claim that seventy-five days judgment after the language gives ple- the the trial court the over- signed, shall be considered vacate, nary power only modify, correct by operation expiration ruled of law on judgment, or reform the and since the period. of that granting judgment, is a new^trial not a (e) timely If a motion for new is power judge the lacked the to vacate its court, regard- any party, filed by the In support appellants order. cite Fulton v. per- has less of whether an been Finch, (1961). 162 Tex. 346 S.W.2d 823 fected, grant a new plenary power regard The facts are similar with Fulton correct, vacate, modify, or trial or to granting vacating and subsequent to the days thirty until reform the time, trial. a new At Rule 329b Sec- timely filed over- after all such motions stated, tion 3 “all motions must be deter- ruled, by signed either written or order exceeding forty-five not mined within and law, by operation of occurs which ever (45) original days after the or amended first. Fulton, is filed.” 346 S.W.2d at motion added). (e) the (emphasis gives rule was com- Subsection grant plenary a new January power effective trial court pletely rewritten vacate, correct, changes (1) modify, or re- with- trial or to Included these were: “must”; (2) thirty days after the time form the until drawal of the word Un- timely all filed motions are overruled. court has to rule on the motion was (c) (3) be con- seventy-five the mo- der subsection the motion days; extended upon if not by operation overruled ruled is overruled of law not sidered as tion (4) seventy-five day period. seventy-five days; upon within the within ruled in Rule use of the word “considered” plenary power was to thir- court’s extended 329b(c) give the (5) expresses an intention to no addition- days judgment; after the ty thirty days to rule trial court an additional for amended motions al time extended after (6) or to enter orders even trial; presentment re- on motion new and for is overruled new trial agreed postponements were motion quirement 329b(c) operation of law. Rule Plainly, the has been eliminated. rule taken to mean what it says. As it has turning been an Holding order for a new trial. interpreted, the trial court has an addition- power the trial court lacked to vacate thirty al days grant a new trial after it previous its order impair would its authori- has previously overruled the motion for ty to enter necessary orders effi- new trial. The trial court should not be cient Appel- administration of its docket. able on one grant hand to a new trial after point lants’ regard error with to the expiration of the seventy-five day peri- motion for new trial is overruled. and, od hand, on the other not be able to Summary Judgment. previous

vacate granting its II. a new trial during the period. same time A more con- A. proof. Burden of interpretation sistent would be to consider Appellants allege that the trial court the motion overruled after expiration erred in appellee’s motion for the seventy-five day period give summary judgment. They judge claim the power trial court grant both to a new improperly placed them, the burden on previous or vacate a order granting a Appellee non-movant. Gray cited v. Unit- new trial within the days. next 30 It would States, F.Supp. (S.D.Tex.1978), ed be most inconsistent to hold that the court where the defendant manufacturer was could vacate a and not be able to granted a summary judgment because the vacate its order granting Any a new trial. failed to it as the manu- interpretation other is unreasonable. After drug facturer of the inju- which caused her expiration seventy-five days, Here, ry. appellee applied Gray to trial court need not rule on the motion if its claim that the had failed to iden- intention However, is to overrule it. if the *5 tify as the manufacturer of grant trial, court chooses to a new the pentachlorophenol may which have con- can do so within in thirty days subse- appellants tributed to injuries. After al- quent to expiration of seventy-five years most discovery two of and several period. day continuances, appellants were unable to purpose The two-fold of the sev establish as the manufacturer of enty-five day period preserved is still as: pentachlorophenol alleged to be a con- (1) to have a definitive date on which to tributor to health problems. begin appellate period if the trial court The United States Court has motion; (2) does not rule on the prevent to held summary judgment that a is mandated the trial delaying ruling court from on the when the non-movant fails to make a show- Therefore, motions for new trial. the trial ing sufficient to establish the existence of given court thirty days grant is to a new each element essential of the non-movant’s if the motion for new trial is overruled case where the non-movant has the burden by operation of provision law. There is no proof adequate and after an time for in the rule giving the trial power court the discovery elapsed. Catrett, has Celotex v. to vacate the of a new trial. The 317, 477 U.S. 106 S.Ct 91 L.Ed.2d 265 reason lies in common sense. Once a new (1986). The facts in Celotex and the facts granted, the trial court is the here are almost identical. In Celotex the having authority court to rule on the case. estate of Louis H. Catrett sued Celotex The trial court has the sole discretion in others, Corp. claiming ruling that Mr. Ca- on the case. This discretion includes by exposure trett’s death was caused power to enter orders which correct Corp. asbestos. Celotex moved for summa- earlier errors. This inis contrast to where ry judgment noting a motion for that the new trial is overruled. The failed appellant any court and the court then witness who could testify quasi-concurrent jurisdiction about the decedent’s exposure have in the only step necessary products. case. The Celotex’s own for a liti After the District gant appellate jurisdiction to invoke court to Celo- tex, is to file an Appeals bond. Nowhere does a divided Court of reversed on Rule 329b restrict the grounds trial court from over- that Celotex had “made no 166a(a, Rule supporting affidavits.” evidence, out any in the form effort to adduce requirement is that b). critical The otherwise, support its affidavits or entitlement movant “show” (D.C.Cir.1985) motion.” 756 F.2d matter of law. rev’d, original), (emphasis in 477 U.S. (1986). The 91 L.Ed.2d 265 106 S.Ct. upon the Texas, the burden notion dissenting judge disapproved the genuine issue is no prove there movant seeking summary judgment party “a Texas University fact. of material always must make an affirmative eviden- Big v. at Houston Center Health Science there is tiary showing, even in cases where Paso, Carpet El Train triable, at 188. dispute.” factual Id. not a Poole, 732 S.W.2d (Tex.1987); El Chico (Tex.1987); Houston v. Clear City Supreme Court re- The States United Authority, 589 S.W.2d Basin Creek versed, holding plain basing its on However, 166a. (Tex.1979); Tex.R.Civ.P. wording which autho- of Fed.R.Civ.P. 56(c), place a the court did City in plead- summary judgment “if the rizes a to come forth the non-movant burden on interrogato- ings, depositions, answers to once the movant its evidence with ries, file, together on with and admissions they are entitled proved that affidavits, is no any, show that there provided judgment. court any fact and genuine issue as to material ..., expressly non-movant must judg- moving party is entitled to that the any court reasons present to the trial The similar ment as a matter law.” entitlement, seeking to avoid movant’s in no rele- provision of Texas law differs 93 and those set out rules such as “no ex- respect. majority found vant summary judg present and he must press implied requirement in [the rule] necessary to establish proof when ment moving party support its motion that the longer the mov- No must a fact issue. materials with affidavits or other similar negate possible issues of law and all ant negating opponent’s claim.” S.Ct. by the non- could be raised fact that original). The concur- at 2553 were not. in the trial court but movant Ap- ring opinion agreed that “the Court of omitted). (Citations In cases such wrong holding the mov- peals was Co., 457 Cas. & Sur. Torres v. Western always support must his mo- defendant *6 (Tex.1970) (existence good of 50 S.W.2d showing tion with evidence or affidavits compen filing late of worker’s cause for genuine dispute the absence of a about Martin, claim), and v. sation Gardner material fact.” at 2555. The dissent- Id. (1961) (fail 274 Tex 345 S.W.2d 162 opinion agreed the rule no- ing even that copies to attach certified ure of movant provide requires where the defendant to judicata), res prior of case to establish plain- disproving the affirmative evidence now, in a must written the non-movant agree that tiffs case: “I with the Court motion, response ex to the answer or that reading was erroneous and this ... present those pressly to the trial court summary judgment on Celotex could seek movant’s defeat the that would issues plaintiff prove could not ground fail right and ato at trial.” Id. exposure to Celotex Asbestos assign so, later them may do not C.J., (Brennan, J., Burger, joined by at 2559 appeal. as error on Blackmun, J., dissenting). and (Italics Houston, at 678 589 S.W.2d City of federal, indi the Texas rule Like the added). emphasis Sum- original, other accompanying of optional nature cates the defendant on for the mary judgment admis referring “pleadings, law, proof by if, of as a matter proper is entire case sions, affidavits, parties, theory of the stipulations upon any not succeed plaintiff could public Burns, 428 or certified and authenticated v. plead. Delgado is (Tex.1983). If the defendant able 166a(c) records, any_” Tex.R.Civ.P. if plaintiff’s of expressly rules essential element prove Both one insufficient, judgment may plaintiff or defendant is provide that a case Lake granted. Manoogian v. should be summary judgment “with or with- seek a 126 Corp., (Tex.App.—

Forest S.W.2d every- ranted after but waste n.r.e.). Austin writ ref'd energy. one’s time and situation completely contrary Tex.R. would be Subsequent to the release of our initial of the Civ.P. which calls for construction opinion, Supreme the Texas Court released ex- rules in such fashion as minimize Brand, 551, (Tex.1989) Casso v. S.W.2d pense delay. and (rehearing Casso, pending). the court Celotex, supra, declined to follow because Celotex, court, Although the procedural places federal law the burden interpreting the Fed.R.Civ.P. 56(c), on both movants and non-movants. Just as Texas rule is from the rule. derived federal Supreme Texas court in City stated The are portions relevant rules two this court should not be misun- pro almost identical. The Federal Rule derstood shifting the burden in summa- vides as follows: ry judgment proceedings to the non-mov- judgment sought The shall rendered proof ant. The burden of still on the pleadings, depositions, forthwith if the judgment movant in summary proceedings. interrogatories, admis- answers to However, once the movants have met their affidavits, file, together sions on with the proved they burden and are entitled any, if genuine there is no show summary judgment, the non-movant must any issue as material fact and that “expressly present then to the trial court moving party is entitled to a those issues defeat that would the mov- a matter of law. right summary judgment.” City ant’s to a 166a(c) Tex.R.Civ.P. states: Houston, 589 S.W.2d at 679. shall forth- be rendered admissions, (ii) if the pleadings, with ... subsequent

Also to our opin initial affidavits, ion, stipulations parties, of the Texas Court released records, public or certified authenticated Gaulding Corp., Celotex S.W.2d 66. hearing, (Tex.1989), any, at the time of pending). on file (rehearing In Gauld- ing, or filed thereafter and before again the facts similar are because the that, permission of the plaintiffs had with been unable to show specific damages, product. except as to amount of there is manufacturer genuine any court issue as to material fact addressed this issue moving judg- party and the is entitled to A principle fundamental of traditional ment as a matter of law on the issues products liability law that the out in the in an expressly set motion or prove must supplied that the defendants response. other any answer or product injury. which caused the See Armstrong Rubber Co. v. Ur [sic] placing exception With the the burden quidez, (Tex.1978)); S.W.2d proof, the rationale the United States Paper Borel v. Fibreboard *7 Products Supreme applicable to the Texas Court (5th Corp., Cir.1973); 493 1094 F.2d rule. summary judgment Tex.R.Civ.P. Corp., Flatt v. Johns-Manville Sales 166a(c) summary judgment a authorized (E.D.Tex.1980); F.Supp. 488 838 Supreme Texas this case. As the States, Gray F.Supp. v. 445 United Gaulding, supra, it is funda- stated a Sales, (S.D.Tex.1978); 338 J. Product Li product principle liability mental law Texas, 365-66, (1985). 1 ability Law in n. plaintiff prove sup- the that the defendant plied product the about which there is a discovery Common sense dictates once complaint. to es- Appellants were unable conducted, the been the of the tablish as manufacturer producer product able to of the the product the of a or demonstrate existence allegedly them. If the injured which result otherwise, material fact that would defeat the mov- could a were a claimant force right summary judgment. Appel- complete ants despite inability full trial its point regarding lants’ the motion even a of evidence as to of error adduce scintilla summary judgment A for is overruled. cause. directed verdict would be war- time of the court the erly at vacating on of new before B. Effect the order hearing. trial. summary judg- a concerns Because this case is based on the ment, the co-defendants the affidavits granting summary judgment. court’s a en- summary judgment was filed after the court determined the outcome as be considered. tered cannot Here, law. a trial not been a matter of appellant appellants failed to Regardless,

held. In the cases cited the a the See, to warrant produce trial had been concluded. v. evidence sufficient Garza S.W.2d Gonzalez, Lynd Wesley, v. (Tex.App. 737 S.W.2d — San (Tex.App. 1987, writ); no Caney [14th Dist.] Antonio Smith v. — Houston writ), five re no this court addressed the Club, Inc., Creek Estates necessary to basis quirements establish writ). no (Tex.App. Corpus Christi — grounds for trial on new summary judgment After was require newly These discovered evidence. here the co-defendant submitted affidavits ments are asserting that the the manu was 1) newly evi- The existence of discovered pentachlorophenol

facturer of the used to dence. logs in appellant’s treat the house. Tex.R. 166a(c) provides 2) moving party

Civ.P. had no notice That prior evidence, of such “shall rendered” if the includ of the existence evidence be affidavits, to the time of trial. “on file at of the the time hearing filed judg 3) thereafter and before diligence That due was exercised to permission prior ment of the court” demon procure with to the time evidence no genuine strate there is issue of material of trial. added). (Emphasis

fact. rule 4) merely cumu- the evidence is not That prevent drafted to exact situation only not tend to im- lative and does presented duty here. A trial court has a peach. consider the it is the motion record as when 5) produce a That the evidence would only is heard and result a new trial were different Entman, is then. v. Metze granted. (Tex.Civ.App. S.W.2d 512 [14th — Houston fail to meet three of Appellants 1979, writ). no In City

Dist.] Initially, requirements. there is these five supra, Court stated fol question of whether the affidavits made lows: trial are motion new basis “Thus, for the both reasons newly These affida discovered evidence. objections and the to it must Discovery had of co-defendants. vits are writing judge before at co-defen against these been undertaken hearing.” from the Kansas law dants. The answers have aware suit should made The rule also allows a This constituted notice of this information. party, leave with to submit evi Consequently, of this information. hearing only dence but before the after not have been requirement first and second entered, judgment. Once the met. The failure to obtain this information can the evidence the court consider diligence lack on appears to be from a In Evans properly which was before it. part Requirement appellants. Conlee, (Tex.App. Corpus 741 S.W.2d 504 — also not met. three has been 1987, writ) Christi the court addressed *8 this as follows: It in the co-defendants best interest was interpret party. 166a to mean that the

We Rule to retain only prior the summa- trial court need consider evi- available evidence was diligence it at the evidence properly ry judgment. was before With dence which prior to the court motion for have been before time the would summary judgment. Likewise, granting of the proper it is for us to the heard. continuances been prop- Several evidence which review discovery. The evidence does not meet the

requirements newly discovered evidence.

Therefore, appellants were not entitled to a appellant’s

If position regarding the trial ability

court’s review the of a followed,

new trial were this cause would

be sent back tried, and tried. Once would contending the court

improperly granted a new trial upon based

evidence not properly before the court at

the time of the summary judgment. The

result would waste the court’s time and

resources as well as parties. that of the

Consequently, summary judgment cases

are different presented from those in Ful- ton, supra; Garza, supra Smith, su-

pra and distinguished. of the trial court is af- .

firmed.

ELLIS, Justice, dissenting.

Finding myself disagreement with the

majority members of the I my record

respectful dissent. COMPANY,

MARATHON OIL

Appellant, STERNER, Appellee.

James E.

No. A14-87-00259-CV. Texas, Appeals

Court of (14th Dist.).

Houston

July 1989.

Rehearing Sept. Denied